Know Your Rights

It’s not always easy to sort out what foreign correspondents’ rights are. The situation is particularly unclear following the spring of 2011, when fear that demonstrations in the Middle East would spread to China led the police to assert direct authority over where and how foreign correspondents could operate, usurping national regulations made permanent in 2008.

If a foreign correspondent is threatened with detention or expulsion, embassies have often proven quick to help. The FCCC recommends that foreign correspondents carry mobile phone numbers for their embassy’s press officer or other official, and keep the embassy abreast of any threats they may receive.

In 2006, the FCCC asked Prof. Jerome Cohen, a prominent Asia expert and U.S. lawyer who’s been involved with Chinese legal issues for years, about foreign reporters’ rights if detained by local authorities or police. He offered the following legal points, which remain largely relevant today:

The prescribed limit for holding a detained person, foreigner or Chinese, while investigation is underway prior to ‘arrest’ is normally 7 days plus another 7 days while awaiting the procuracy’s decision whether or not to approve the arrest warrant application. HOWEVER, there are 3 exceptions listed in the Criminal Procedure Law (CPL Art. 69), and the police routinely interpret them broadly beyond recognition to give themselves 30 days if needed plus the prescribed 7 days for procuracy review, i.e., a total of 37 days.

‘Disrupting public order’ is one of the favorite law enforcement categories used for detaining people whom police and prosecutors want to curb. It should, of course, only be available if someone unlawfully instigates a public disturbance. It frequently is invoked if someone questions police efforts to detain him/her and this leads to an argument involving others present and perhaps resistance to police resorting to forcible detention. Often this vague phrase is arbitrarily interpreted at the convenience of the police to cover a variety of circumstances, especially in sensitive cases where the police really have no evidence of violation of law by their target, as in the Chen Guangcheng case. This is not only a category familiar to China’s Criminal Law — which provides for maximum punishment of 5 years in prison (CL Art. 291) — but it is also punished administratively by the police under the Security Administration Punishment Law for a maximum of 15 days in detention.

Article 109 of the CPL authorizes the police to search the body and personal belongings of a criminal suspect. There really is no meaningful concept of ‘voluntary’ search. Nor is there any requirement for the police to obtain the approval of any other agency. A search is commonly carried out pursuant to detention. The CPL does provide that female police are to search female suspects. The entire area of ‘search and seizure’, so crucial to the administration of criminal justice in democratic countries, is a neglected subject in China.

The rights of any foreigner detained in any way by PRC authority are usually governed by the bilateral agreement that exists between the PRC and the foreign national’s government. In the absence of such an agreement, the Vienna Convention on consular matters of 1963 should govern if the foreigner’s government has adhered to it (China has). Even if the foreigner’s government has not adhered to it, that Convention serves as the best evidence of the applicable customary international law. Usually the detainee not only has a right to contact his or her consular official but also the rights to have the detaining authority notify the foreign government of the detention within a prescribed time, to have access to counsel and consular officials and to have a consular official attend any court proceedings. But details have to be consulted in the relevant agreement.

Art. 25 of the Rules for Implementing the Law on the Entry into and Exit from China of Foreigners require all foreigners to carry with them valid identification documents all the time. If one does not, Art. 43 of the Rules provides for a maximum fine of 500 RMB and the possibility of the equivalent of deportation.

Whether foreigners with a residence permit have to report their return to China following a foreign sojourn seems unclear insofar as explicit legal authority goes. Since 2005 there has been no requirement to obtain a reentry visa from the local Public Security Bureau in Beijing, but this does not necessarily mean that there is no duty to report on one’s return, at least as a matter of police interpretation. We do not know the situation in other cities, and it may be a question of local interpretation rather than legal authority.